Law and the Academic Study of Religion: Further Thoughts

A few additional thoughts on the convergences and divergences of law and the academic study of religion, prompted by thoughtful emails from legal and ASR scholars Nelson Tebbe and Donald Drakeman.

Methodological Distinctiveness

Both law and ASR may be similar in that they harbor anxieties about their methodological uniqueness and about the autonomy of their disciplines as fields of academic inquiry. In law, this has been a perpetual worry that became particularly acute in the 20th century, as scholars from Pound to Holmes to Posner have argued compellingly for law’s non-autonomy. Indeed, Posner has advocated the project of “overcoming” law: what takes the reins after law has been overcome is economics, philosophy, political science, or some other discipline with truly independent methodological bona fides (it’s mostly economics for Posner). Though it is not my field (and so I hope to be corrected by those who know better), my sense is that ASR has some of these same anxieties but in its case, the anxieties are connected to the conceptual distinctiveness of the subject matter that it studies. Certainly in law, self-justification and disciplinary apology are not unknown.

Practice and Theory: Maintaining or Collapsing the Division?

Both law and ASR have roots as practical endeavors–as trades and professions, rather than as purely academic subjects. For law this is obvious; for ASR the root is theology and ministry. And law schools and divinity schools historically functioned to prepare tradesmen; indeed, both continue to operate primarily to train future practitioners of their respective trades.

My friend Nelson Tebbe points out to me that Yale Law School Professor Paul Kahn notes some of these similarities in his book, The Cultural Study of Law: Reconstructing Legal Scholarship. Kahn’s project is precisely to help legal scholarship get over its past professional association, in much the same way that ASR has attempted to transcend its own. Here’s an interesting passage from early in Kahn’s book:

When lawyers think about contemporary legal theory, they are likely to express the view that it is too theoretical, too disconnected from the practice of law to be of any interest or use. In fact, the problem is exactly the opposite. Theory has substantially failed to separate itself from practice. The reforms offered by legal theorists may often be impractical, but the central assumption of both the scholar and the lawyer-critic is that reform is the appropriate end of scholarship. The lawyer-critic wants only to replace the poor–meaning impractical–reform proposals that emerge from the academy with better ones.

By taking up the project of legal reform, however, the scholar becomes a participant in legal practice and, therefore, a part of the very object that he or she has set out to investigate. The collapse of the distinction between the subject studying the law and the legal practice that is the object of study is the central weakness of contemporary legal scholarship. “Collapse” does not happen at a moment in time, as if there were first a separation of subject and object, which suddenly disappeared. The legal scholar comes to the study of law already understanding herself as a citizen in law’s republic. She is committed to “making law work,” to improving the legal system of which she is a part. Collapse refers to the failure of an analytic possibility, not some sort of transitional experience.

I believe that Kahn is right about this: there is a tension that permeates legal scholarship that is in some ways a product of its historical situation within a practical discipline alongside its long tradition of rigorous academic study (dating at least to the University of Bologna in the medieval period). Sometimes, legal scholars do not negotiate this tension successfully.

But where Kahn criticizes the collapse of theory into practice, one might just as readily question the collapse of practice into theory that he recommends. It has always seemed to me that one of the strengths and unique points of legal scholarship lies in its preservation of the separation of theory and practice. That is, its strength lies in negotiating that separation, and in refusing to collapse it into either constituent category. Legal scholarship is perched between two worlds, and it is only in this precarious posture that it retains both an internal and an external perspective on its subject. If it fell to one side or the other–if the separation on which it depends really did collapse– what methodological tools would the legal scholar use to analyze law? Precisely those of the economist, the philosopher, the political scientist, or the ASR scholar.

The Role of Doctrine

Likewise, as I have noted before, law schools and schools of theology or divinity are the only ones I can think of in which the idea of doctrine is intrinsically important. This is in part because these disciplines are specially attuned to the authoritativeness of the past. Other disciplines have no such commitments–indeed, their commitments may run in a very different direction. It is not clear to me what perspective ASR has on the role of doctrine, but it would not be surprising that the less closely the discipline associates itself with schools of theology or divinity schools, the more it would embrace a critical posture toward doctrine.

The other difference in this respect is that doctrine provides a coordinating function in law and theology that simply does not apply in other areas of study. This function of doctrine is, of course, connected to law’s managerial role and its internal perspective on the customs and traditions of the specific society in which it operates. This role and this orientation are not shared by most other disciplines.

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